Background: The Constitution does not explicitly establish the power of judicial review. The power of the Supreme
Court to invalidate an act of Congress was stated in
Marbury v. Madison. President John Adams appointed a number of justices during the last days of his administration. Most of his appointments were delivered, but not all. When Jefferson took office, he ordered his secretary of state not to deliver the remaining appointments. Marbury had been appointed as justice of the peace and his appointment had been one of those not delivered. He filed a suit with the Supreme
Court requesting a writ of mandamus.
Marbury v. Madison (1803)
• The authority of the Supreme Court to issue writs of mandamus to public officers appears not to be warranted by the Constitution
• The powers of the legislature are defined and limited
• The Constitution is a superior paramount law, unchangeable by ordinary means
• The Constitution controls any legislative act repugnant to it
• If two laws conflict with each other, the courts must decide on the operation of each
• A written constitution is the greatest improvement on political institutions
• The judicial power is limited to cases arising under the
Constitution

Does Congress have a right to incorporate or charter a national bank even though it is not stipulated anywhere in the
Constitution?
• Government of the Union is supreme within its sphere of action
• The incorporation of a bank is not stipulated in the Constitution; nonetheless, the powers to collect taxes, borrow money, regulate commerce, raise an army, and declare war are
• The federal government should have the means to execute its ample and vital powers
• The intent of the framers was not to deprive the national government of the means to carry out its enumerated powers
McCulloch v. Maryland (1819)
• The Constitution must allow the national legislature the discretion to carry out the powers it confers to it
– The power to tax is a concurrent power
– The power to create implies a power to preserve
– When powers are concurrent, the authority which is supreme must control
– The states have no power to burden or impede the operations of a constitutional law enacted by Congress
– Thus, the act of incorporating the bank is constitutional
Background : Gibbons v. Ogden is the first major case interpreting the commerce clause. In 1798, the New York legislature granted R. Livingston a monopoly over the navigation of its state waters by steam boats. In 1793
Congress passed an act providing for the licensing of vessels engaged in coastal trade and Gibbons obtained under this new law a license to operate boats between New
York and New Jersey. Ogden was engaged in a similar operation under a license granted by Livingston and wanted to prevent Gibbons from further operation.

Gibbons contends that the New York law is unconstitutional because
Congress has the right to regulate commerce and to promote the progress of science and the useful arts
• The last of the enumerated powers gives Congress the right to do anything that is necessary and proper to carry out its enlisted powers
• From its very beginning, navigation has been regulated by the national government with the consent of all
• The power to control commerce does not stop within the jurisdictional lines of the several states
• Congress has the power to control commerce with foreign nations, among states, and with Indian tribes
Gibbons v. Ogden (1824)
• Laws created by the states have validity insofar that they do not interfere with those acts enacted by Congress
• Insofar that the laws of New York contradict the Constitution, they are null
Civil War Amendments
• 13 th : Abolishes slavery
• 14 th : grants citizenship to those born in the country; establishes due process; bars states from denying privileges and immunities to citizens
• 15 th : prohibits both federal and state governments from denying the right to vote on account of race, nationality, or previous condition of servitude
• The enforcement clause of the Civil War gave Congress the ability to create the appropriate legislation to enforce the 13 th ,
14 th , and 15 th amendments, thus expanding its power over the states on the issue of civil rights

National Power Over the States: a Recurring Constitutional Debate
Gibbons v. Ogden Revisited: Federalism and the Commerce
Clause
• After 1836, the Court adopted a more restrictive view of the national commerce clause. However, this changed in 1937 with
Franklin D. Roosevelt’s New Deal. Congress turned to the commerce clause for the legal authority to enact the Civil Rights
Act of 1964. Government argued that racial discrimination in public accommodations impedes interstate travel by those discriminated against, causing disruption in interstate commerce.
• The road has not been easy for either the states or the national government, both of which have defended their sphere of power enormously
Background: In 1994, Congress passed the Violence Against
Women Act, stipulating that all people within the U.S. shall have the right to be free from crimes of violence motivated by gender. This law was based on the right of
Congress to regulate commerce. Although the law had general support, had Congress gone too far?